Groundbreaking Conference Addresses Use of Secret Evidence in the Courts

ACLU Attorney Jameel Jaffer

Secret Evidence and the Courts in the Age
of National Security brought together government
officials, lawyers, journalists, and
academics to examine the increased use of
secret evidence and discuss whether the
government is protecting national security at
the expense of fundamental liberties. The
conference, sponsored by the Floersheimer
Center for Constitutional Democracy and
the Jacob Burns Center for Ethics in the
Practice of Law, was the first to bring
together people with varied perspectives to
address challenges that secret evidence
presents, especially in legal proceedings.

David Cole, professor of law at Georgetown
University Law Center, said that historically
the government’s handling of national
security crises has not been balanced.
Foreign nationals are targeted and stripped
of their rights first, which “often serves as a
kind of wedge for what will be done in the
future to the rest of us.”

Washington Post Correspondent Dana Priest

According to Cole, what is also at stake is
public knowledge of what our government is
doing. Gitanjai Gutierrez, an attorney with
the Center for Constitutional Rights, agreed
that reliance on secret evidence is dangerous
because it can hide executive misconduct.
“What we’ve learned from Guantánamo is
that, if anything, it has been a smokescreen
for what our government has been doing in
other facilities and other countries,”
Gutierrez said. According to Jameel Jaffer,
staff attorney at the American Civil Liberties
Union, secrecy prevents citizens from having
all the information necessary to make
informed decisions about political leaders or
holding leaders accountable for bad decisions
and ineffective policies. “Excessive secrecy
leads to uninformed decisions and to unaccountable
decision makers,” Jaffer said.

Gutierrez discussed combatant status
review tribunals, procedures used at
Guantánamo Bay to evaluate a detainee’s
status as an enemy combatant, and said
evidence is often withheld from detainees.
She questioned when it became appropriate
to use secret evidence to detain foreign
nationals for the rest of their lives, but according
to Bradford Berenson, former White
House associate counsel, during times of war
we have always been able to hold an enemy
until the war is over, as a lesser use of force
than execution. “This is not just US practice,”
Berenson said. “This is universal practice
through millennia of human history.”

Prof. Monroe Price and keynote speaker Adam Liptak

The conference also addressed issues of
secrecy, including the effects of the Patriot
Act and expanding surveillance powers.
“The Department of Justice wanted the
Patriot Act to be drafted to tear down the
wall, the so-called wall, between the criminal division and the intelligence side of
law enforcement,” Karl Metzner, Assistant
United States Attorney for the
Southern District of New York, said.
“The problem is that with the walls
demolished so completely, the roof is
in danger of coming down.”

According to New York Congressman
Jerrold Nadler, the government
has sought more ways of conducting
secret searches since 9/11, and these
efforts affect all US residents, not
just the terrorists. In his opinion, the
Patriot Act is bad legislation. “But
I strongly believe that we can protect
America without thinking of safety
and constitutionality as opposite
values,” Nadler said.

The way secret evidence is handled
and how terrorism cases are tried
in other countries was discussed by
Gadi Tasfrir, senior prosecutor for the
Office of the State Prosecutor of Israel,
who said that Israel has no special
court for terror cases. The cases are
prosecuted in the regular criminal
court, which James MacGuill, defense
lawyer for the Special Courts, Ireland,
said is preferable to having a separate
system. “Throw the fair trial guarantees
aside and you may never, ever
recover from it,” MacGuill said.

US Congressman Jerrold Nadler

The Hon. Gerald Rosen, US District
Court, Eastern District of Michigan,
discussed some of the logistical problems
with cases involving secret
evidence, such as how everyone from
the judges to the court reporters must
receive clearance. Andrew McCarthy,
a senior fellow with the Foundation
for the Defense of Democracies, said
that terrorism or national security
trials often force
opposing attorneys to
take on each other’s
roles. “The prosecutor
is really called on to
be a defense lawyer in
many aspects of what
he must do during the
trial,” McCarthy said.

During a panel on
investigative journalism
and national security,
participants discussed
the reporting
challenges posed by
an increased use of
secret evidence. Dana
Priest, national security correspondent
for The Washington Post, said the
job is difficult when you don’t have
the entire picture and that, when
working in the field of intelligence,
everything is secret. “We are in the
business of challenging secrecy,
because we presume it doesn’t really
exist for the purpose [the government
claims] it does, and I would urge that
that’s something you need to consider
yourselves,” Scott Armstrong, investigative
journalist for the National
Security Clearinghouse, said.
Stephen Hayes, a journalist
for The Weekly Standard, said
that the current administration’s
interest in secrecy
extends not only to documents that
are potentially harmful, but also to
ones that are potentially helpful.

Priest discussed some of the difficult
decisions she had to make when
working on an article about CIA use
of secret prisons in other countries.
She had to consider the public’s right
to know, our country’s national security
interests, and the interests of the
countries involved. The paper made
the decision not to name the countries,
but instead to refer to them as Eastern
European democracies, which Priest
called the responsible thing to do.

Adam Liptak, national legal correspondent
for The New York Times,
shared his perspective as both a
lawyer and a reporter in the keynote
address. He spoke in part about government
use of preventive detention,
which he said may be a good idea, but
the existing laws have been stretched
“beyond recognition” to achieve the
goal. “That is, we don’t have a preventive
detention law enacted by
Congress, but we have various techniques
that prosecutors and courts
have molded into a preventive detention
regime.” While he said it’s a bad
time for the media, he added that our
country is committed to free speech
and it is “now so deeply rooted that
it’s hard to imagine that it will be
fundamentally disturbed.”

Nobel Prize Winner Amartya Sen Discusses Limits of Law

During an enlightening lecture at Cardozo, Nobel Prize-winning
economist Amartya Sen discussed the relationship between
human rights and the law and criticized a purely legal approach
to handling human rights issues. “I speak here with great
humility because I am not a lawyer,” he said, before apologizing
to the audience because he was going to speak about the
limits of the law.

Sen, the Lamont University Professor at Harvard University,
said there are several ways to safeguard human rights other
than through legislation. He said that those who fight for
human rights often pursue legislation, such as new laws or new
interpretations of old laws, but this approach is incomplete or
“foundationally mistaken.” He challenged the idea that human
rights protections are consequences of legislation, precursors
to legislation, or ideal ground for legislation.

Sen said it is necessary to rely on public discussion and
pressure, social critique, and education, in order to foster
change. It is imperative to “look beyond the rigid box of
legislation,” he said, adding that we need to think about the
issues on a much larger scale, and while legislation is important,
it is not the only route worth pursuing.

Cardozo Supports Hurricane Katrina Relief Efforts

Scott Sherman, Andrew Pickett,
and Alex McBride were among
nine Tulane Law Students who
visited Cardozo for the fall
semester in the aftermath of
Hurricane Katrina.

As the country mourned
the destruction caused by
Hurricane Katrina, Cardozo
did its part to provide
support and assistance to
those in need.

On behalf of the Cardozo
community, the Public
Interest Law Students
Association (PILSA) enlisted
the help of other student
groups to organize fundraisers
and a clothing drive,
and to collect donations for
hurricane relief organizations.
During a two-week
period—including five days
of fundraising efforts called
“Hurricane Relief Week”
and a day when the
Cardozo administration
matched the donations—the
student body, faculty, and
staff raised approximately
$5,400. The money was
donated to the American
Red Cross, Operation USA,
and Habitat for Humanity.

The Law School admitted
nine upper-level Tulane
students as visitors for the
fall semester at no charge
since they had already
paid tuition to their home
institution. Cardozo also
helped them acclimate by
assisting with housing,
securing free casebooks
through textbook publishers,
holding a special orientation
upon their arrival on campus,
and providing funds
from The Carroll and Milton
Petrie Emergency Fund for
their initial and most basic
needs such as housing,
clothing, and books.

Tulane student Alex
McBride worked at the
Innocence Project during
the summer of 2005, and
that experience led him to
Cardozo in the aftermath of
the hurricane. He described
the Law School’s faculty
and students as fantastic
and said he was enjoying
his time at Cardozo. “I’m
thankful that Cardozo let us
in,” McBride said.

Class of 2008 Arrives on Campus

At orientation, 236 first-year
students and 47 LL.M.s
entering in September 2005
were formally welcomed to
Cardozo, and to the profession,
by Dean David Rudenstine
and Robert Schwartz,
associate dean for admissions.
“We are all very proud
of your accomplishments,
and you should be as well,”
Schwartz said. Dean Rudenstine
gave a brief history of
Justice Cardozo and of the
Law School, and discussed
some of what the students
can expect—anxiety, disappointment,
falling in and
out of love, and exhilaration.

During a keynote
speech, Michael Cardozo,
corporation counsel of the
city of New York, encouraged
students to enjoy the
practice of law while making
a positive difference.
Mr. Cardozo, a distant relative
of Justice Benjamin N.
Cardozo, portrayed lawyers
as heroes and said they can
save someone from death,
can help eliminate discrimination,
and have the capacity
to effect change. “You
don’t have to wait until you
graduate to start doing this
good work,” Cardozo said.

The newest J.D. candidates
bring with them extraordinary
qualifications,
marking the Law School’s
continued success in
attracting high-caliber students.
For the second year
in a row, the number of students
applying to Cardozo’s
J.D. program was in excess
of 5,000. Of those enrolling
in September, the median
GPA was 3.5—the highest in
the School’s history. Half
scored above 164 on the
LSAT, and the top quarter of
the class achieved scores of
166 or higher. Leiter’s Law
School Rankings for 2005
ranked Cardozo 23rd
nationally for student quality
as measured by LSAT
scores for the top quarter of
the class. (See http://www.
leiterrankings.com/students/
2005student_quality.shtml)

The entering J.D. students
call 30 states and 9
countries home, with a
record 11.2 percent (46
students) from California.
They represent 130 undergraduate
institutions, with
the major feeder schools
being NYU with 24 students,
University of Pennsylvania
with 17, and
Columbia/Barnard with 16.
They range in age from 20
to 56, with 10 percent of
them 30 or older. Overall
minority enrollment for the
class is 22.6 percent.

Several members of the
class arrived with experience
working on political
campaigns and in a variety
of careers. Enrolling in the
fall were a former assistant
military attaché at the
Israeli embassy, a policy
analyst at the National
Immigration Law Center, a
producer for MSNBC, a statistician
for CBS Sports, an
assistant to David Letterman,
a stand-up comedian,
an Olympic fencer, an
economist for the US
Department of Commerce,
a published author and poet,
and one student who lived
with the aborigines in
Australia. Several hold
advanced degrees in areas
such as philosophy, theology,
Japanese literature,
molecular genetics, education,
and American history.

Of the entering LL.M.
students, 33 received their
first degrees in law abroad,
while 13 graduated from
a law school in the US,
including 4 from Cardozo;
24 enrolled in the General
Studies program and 22
enrolled in the Intellectual
Property Law program.
The new graduate students
hold law degrees from more
than 20 countries including
Bulgaria, Chile, Estonia,
France, Guinea, India,
Israel, Japan, and Mexico.

Eric J. Pan, who joined the Cardozo faculty
in 2005 and was named director of the
Samuel and Ronnie Heyman Center on
Corporate Governance, has launched this
year’s program with a series of public
events that addressed trends reshaping the
securities industry. Perspectives on
Corporate Restructuring featured 21 of the
nation’s leading experts involved in some
of the largest and most complex corporate
reorganizations of all time, such as Enron,
United Airlines, and Calpine. Speakers
included James Sprayregan and Richard
A. Cieri of Kirkland & Ellis LLP; Stephen
F. Cooper of Kroll Zolfo Cooper LLC; Henry
S. Miller of Miller Buckfire & Co., LLC;
Prof. David Carlson; Deirdre Martini,
United States Trustee (Region 2); John
Rapisardi of Weil, Gotshal & Manges LLP;
Myron Trepper of Willkie Farr & Gallagher
LLP; and Daniel H. Golden of Akin Gump
Strauss Hauer & Feld LLP. The conference
provided an opportunity for practitioners
and students to learn firsthand from the
experiences of lawyers in the vanguard
of this field.The Heyman Center also began to
collaborate with the Securities Industry
Association Compliance and Legal Division
(SIACL) in offering public programs. The
first, Attorneys as Gatekeepers, explored
the new obligations attorneys have to
prevent securities law violations. The panel
included Judge Lewis A. Kaplan of the
Southern District of New York; Helene
Glotzer, associate regional director, Northeast
Regional Office of the US Securities
and Exchange Commission; Carmen
Lawrence, head of securities regulation
and enforcement at Fried, Frank, Harris
Shriver & Jacobson LLP; Mike Stone,
former general counsel of Morgan Stanley
Dean Witter and an adjunct professor at
Cardozo and senior fellow of The Heyman
Center; Paul Merolla, general counsel of
Instinet Group, Inc. and president of
SIACL; and Professor Pan. Two more
Heyman Center–SIACL programs are
scheduled for spring 2006 and another four
during the next academic year.

during the next academic year.
In addition to supporting public events,
faculty scholarship, and student internships,
The Center helps students
with strong academic records
and an interest in corporate law.
With the addition this fall of
14 Cardozo students who are
pursuing J.D. and LL.M. degrees,
there are now 36 Heyman
Scholars on campus.

Intellectual Property Program Features Scholars
and Practitioners

The semester began with the fifth annual
Intellectual Property Scholars Conference
(IPSC). Held in August, the event provides
young scholars, who present their works in
progress, with networking opportunities
and advice from veteran academics. IPSC is
cosponsored with the Berkeley Center for
Law & Technology, University of California
at Berkeley; the Center for Intellectual
Property Law and Information Technology,
DePaul College of Law; and the Stanford
Program in Law, Science & Technology,
Stanford University.

FORUM FOR SCHOLARS Founded five
years ago, the Intellectual Property Speaker
series provides another forum for scholars
to discuss cutting-edge issues with colleagues
and students. The fall speakers
included R. Anthony Reese, University of
Texas, on “The New Unpublished Domain”;
Jacob Jacoby, New York University Business
School on “Sense and Nonsense in
Measuring Sponsorship Confusion”; David
Adelman, University of Arizona on
“Grasping the Slim Tail of Innovation:
Biotechnology Patenting from 1990–2004”;
and Wendy Gordon, Boston University on
“Moral Philosophy, Informational
Technology: the Copyright Connection.”

FOCUS ON PATENTS Hon. Francis Gurry,
deputy director-general and general
counsel, World Intellectual Property
Organization (WIPO), spoke on the “Future
Direction of the International Patent
System” at the 12th annual Distinguished
Lecture in Intellectual Property. At WIPO,
he is responsible for policy questions and
administration of the Patent Cooperation
Treaty; policy issues concerning biotechnology,
genetic resources, and traditional
knowledge; and the WIPO Arbitration
Center. An Australian national, Gurry holds
law degrees from the University of
Melbourne and a Ph.D. from the University
of Cambridge.

GEOGRAPHICAL INDICATIONS
CONTROVERSY A major symposium,
Geographical Indications: Rural Development,
the Meaning of Place, and the
Implication for Trade Talks, examined a
specialized area of intellectual property law
that is concerned with the protection of
such things as names of foodstuffs like
Bordeaux wine, feta cheese, and Idaho
potatoes. Geographical indications are creating
controversy between the European
Union and countries such as Canada and
the United States that use terms like
Parmesan cheese and champagne generically.
Panelists included Lynne Beresford,
commissioner of trademarks, US Patent and
Trademark Office (USPTO); Denis Croze,
director-advisor, WIPO; Victoria Espinel,
assistant US trade representative for intellectual
property; Prof. Dev Gangjee, Oxford
University; and Prof. Stefania Fusco,
Stanford University.

THE MUSIC INDUSTRY & THE WEB “Web
Commerce and Development for Unsigned
Artists,” a panel of music industry experts,
discussed the use of the Web in finding
new streams of revenue for developing
musical artists. For the third year in a row,
the Grammy Foundation®, in partnership
with Cardozo Arts & Entertainment Law
Journal, The New York Chapter of The
Recording Academy, and the ABA Forum
on Entertainment and Sports Industries,
presented programming on campus that
examines and debates the most compelling
issues facing the music industry.

As news of the first woman to be elected an African head
of state spread across the airwaves in early November,
students of the Cardozo Journal of Conflict Resolution presented
Betty Kaari Murungi, a lawyer and leading figure of
Africa’s women’s rights movement, with the 2005 International
Advocate for Peace Award. She accepted it “on
behalf of the thousands and thousands of women with
whom I have worked over the decades … whose courage
and conviction allowed me to collaborate in the work for
justice and a sense of
peace in their lives,”
she said. Ms. Murungi’s
speech was the keynote
address for the
conference International
Mediation in
Times of Conflict:
Lessons from Public
and Private Dispute
Resolution.

Against the historic
and emotional backdrop
of Ellen Johnson
Sirleaf’s victory in
Liberia and Rosa
Parks’s death in the
United States, Ms.
Murungi spoke of
growing up on the
slopes of Mt. Kenya
and the influential role
her grandmother
played as a respected
community mediator.
Ms. Murungi said, “She
knew and practiced
human rights way
back in the ’40s and
’50s. She gave voice to young girls and women by offering
shelter, food, and counsel.” She credited her grandmother
with introducing her to the importance and necessity of
conflict negotiation.

Ms. Murungi explained that African women’s lives are
shaped by “colonialism, neo-colonialism, imperialism,
Christianization, Islamization, globalization, and militarism,”
and yet they remain custodians of the old and
trusted methods of building peace within communities.
She said, “There are many such women all over the world
to whom this art of resolving and transforming conflicts
comes naturally. They represent the power that women
have within their own communities that somehow fails to
translate into political power within the formal structures
that have evolved such as the United Nations or the
African Union.”

Ms. Murungi spoke of the organization she directs, the
Urgent Action Fund–Africa, which promotes the rights of
women and girls in three main areas: rapid-response grant
making, peace building, and transnational justice. The
organization undertakes collaborative projects with women
and organizations in conflict and postconflict situations.

Because political and security structures are, as Ms.
Murungi said, “exclusive
male clubs,”
African women have
resorted to innovative
strategies to get their
voices heard. She
explained how women
in Liberia refused to
attend church and
stayed away from their
homes for weeks in
order to win a place at
the negotiating table
during their civil war.
Because they found
this behavior so disturbing,
the men
relented and finally
invited them to participate.
“This was an
unprecedented
achievement, as an
indigenous women’s
group never before
attended negotiations
of this kind in Liberia,”
she said.

Ms. Murungi called
on the audience to
stay vigilant as situations of extreme conflict continue in
Western Sudan’s Darfur region, the Congo, Ivory Coast, and
Northern Uganda, noting also that the “war on terror” has
fueled religious and cultural fundamentalism that is producing
repressive antiterror legislation that undermines
human rights and sets back progress for women.

In ending, she urged Cardozo students as young advocates
to continue on their paths, hold onto their dreams,
and always remain open to new ideas, for this is how the
law remains committed to the principle of growth.

Series Showcases Stories of the Holocaust

Actress Suzanne Toren in Lea Fridman’s play w/ Hole in the Heart.

The Cardozo Program in Holocaust and Human Rights Studies introduced
Stories and the Holocaust: Challenges to the Artistic Imagination,
a four-part series of performances and discussions scheduled
throughout the academic year that illustrate events connected to the
Holocaust and address the limits of artistic freedom in representing
Holocaust accounts.

The first event featured Bernhard Schlink, author and Cardozo
visiting professor, who read from his acclaimed novel The Reader,
about a young contemporary German who must confront his country’s
Nazi past. During a roundtable discussion, Clayton Koelb, chair of
the department of Germanic languages at the University of North
Carolina, Chapel Hill, said the novel raises the question of how to
put a human face on evil. Cardozo Professors Richard Weisberg and
Julie Suk and Visiting Professor Uriel Procaccia also offered their
perspectives on the novel.

SEXUAL SLAVERY
Sulia Chan of the Chinese
Alliance for Memorial & Justice
illustrated her discussion of WWII
Korean comfort women at Sexual
Slavery: New Approaches to an
Old Problem. The symposium,
sponsored by the Women’s Law
Journal and the Program in Holocaust
and Human Rights Studies,
addressed the current rise of the
sexual slavery trade and offered
ways to combat the problem on
the national and global level.

Later in the semester, the new play w/ Hole in the Heart, a
powerful family story of Holocaust survival, was performed. Written
by Lea Wernick Fridman, a professor at Kingsborough Community
College, the play focuses on how the daughter of a Holocaust victim
deals with her mother’s incomplete descriptions of the past by
attempting to fill in the holes in her mother’s stories and reconstruct
history. During a discussion moderated by Professor Weisberg,
Lillian Kremer, the university distinguished professor emerita at
Kansas State University, said the play shows how difficult it is to
capture the past as it really was. Professor Schlink said the play
shows how the Holocaust’s effects are felt by the second generation
and that he’d like to see it performed in Germany.

Hate Speech Regulation Examined at Floersheimer Center Conference

Lord Bhikhu Parekh of the English House of Lords at A Comparative Examination of Hate Speech Protection

Constitutional experts from Europe,
Israel, Canada, and the United States
gathered to discuss the legal controversies
surrounding the regulation of
hate speech at A Comparative Examination
of Hate Speech Protection,
sponsored by the Floersheimer Center
for Constitutional Democracy.

Different countries approach the
issue in different ways; the goal of the
conference was to better understand
the regulation of hate speech in a
comparative perspective. In the
United States the courts have generally
looked unfavorably on regulating
hate speech. By contrast, restrictions
on hate speech are accepted in other
parts of the world.

Bhikhu Parekh, a member of the
English House of Lords, gave a
keynote address titled “Is There a
Case for Limiting Hate Speech?”
Calling himself an “oddity” in the
gathering because he is not a lawyer,
Parekh defined what hate speech is,
discussed what is wrong with it, and
spoke about whether the law is the
best way to deal with it.

Parekh said that 148 countries
regulate hate speech and that he supported
hate speech regulation in the
United Kingdom. “Free speech is a
great value, but it’s not the only value,”
Parekh said. Even in the United
States, some forms of communication,
such as child pornography, are now
subjected to restrictions, and, according
to Parekh, in certain societies hate
speech needs stronger regulations.
“Let us not judge all societies in terms
of a single model,” Parekh said.

As part of a larger project on the
study of hate-speech regulation, a
follow-up meeting will be held this
spring at Central European University
in Budapest, where participants will
address, among other topics, the
challenges presented by hate speech
on the Internet.

Geoffrey Stone, one of the nation’s
leading First Amendment scholars,
participated in a lively discussion
about his most recent book, Perilous
Times: Free Speech in Wartime from
The Sedition Act of 1798 to The War on
Terrorism. The book, called by Prof.
Michael Herz “a classic effort to study
the errors of history so as not to
repeat them,” examines how free
speech protections have been diluted
in America during times of war.

According to Stone, speech enjoys
its special legal status because it is the
means through which we make decisions
in our society. When speech is
restricted, the ability to make wise
decisions is lost. “I think speech is
valuable because it does have power,”
he said. “That’s why we need to
protect it, but it’s also why we need to
fear it.” Nonetheless, Stone said, the
government consistently overreacts
to apparently dangerous speech
during wartime.

Stone, the Harry Kalven, Jr.
Distinguished Service Professor of
Law at the University of Chicago,
responded to the comments of Dean
Rudenstine and Professors Herz and
Richard Weisberg, and joked that he
wished he had the benefit of their
remarks before his book was published.

Cardozo professors who clerked
for Supreme Court Justices—
(from left) Monroe Price, Marci
Hamilton, Richard Bierschbach,
and Michael Herz—discussed
their experiences at “Inside the
Supreme Court.” The panel was
part of Conversations on the
Constitution, a series that
addresses current Supreme Court
cases and issues, and is sponsored
by the Floersheimer Center.

Corporate Election Reform Is Bauer Lecture Topic

Prof. Lucian Bebchuck

Lucian Bebchuk, a professor of law, economics, and
finance at Harvard Law School, shared his ideas on reforming
corporate elections at Cardozo’s annual Uriel and
Caroline Bauer Memorial Lecture.

Professor Bebchuk, the first corporate law scholar to
give the Bauer lecture, explained the importance of corporate
elections, saying that
directors make critical
decisions, such as selecting
and/or firing the CEO
and delegating day-to-day
decisions to the CEO.
Directors need to have
the right incentives.
“Independence is beneficial,
but independence is
inefficient,” he said, in
determining who will
make a good director.
Noting that at present
shareholders do not have
the power to change the
entire board, he argued that to increase shareholder power
they should have the ability to replace all of the directors
in one up-or-down vote. “We need to have some mechanism
for accountability,” Bebchuk said. He also proposed
holding more meaningful elections every two or three
years instead of every year.

Who is Judge Alito?

As the debates and Senate hearings on Judge
Samuel Alito’s nomination to the US Supreme Court
were ongoing, the Cardozo Democrats and the NYU
Democrats held a panel in the Jacob Burns Moot
Court Room to discuss “Who is Judge Alito?” The
panelists were Mark Tushnet, Carmack Waterhouse
Professor of Constitutional Law, Georgetown
University Law Center (who spent three weeks at
Cardozo during the fall); Prof. Michael Herz, a
former clerk to Justice Byron White; Prof. Ed
Zelinsky, Alito’s classmate at Yale; and Kate Pringle,
a partner at Kriedman Kaplan Seiler & Adelman
LLP and former law clerk to Judge Alito. Adam
Liptak, national legal reporter for The New York
Times, was the moderator.

The panelists all had high praise for Alito’s
ability and integrity, but were divided on the substance
of his judicial decisions. The discussion also
delved into the standards that the Senate should
apply in exercising its constitutional authority to
“advise and consent” on the appointment of US
Supreme Court justices. Pringle, who received some
attention in the press as a liberal Democrat who
strongly supported the appointment, suggested that
the Senate and the citizenry have the right to
demand smart people who respect the Court and
different points of view on it. Zelinsky stressed that
it was important to look at the whole candidate
and not to dissect individual decisions.

Insider Discusses Iraqi Constitution

Cardozo students were treated to a rare insider’s view
when Iraq’s deputy permanent representative to the
United Nations, Feisal Amin al-Istrabadi, spoke about the
writing of the Iraqi constitution that was approved in a
referendum in October 2005. He was one of the principal
drafters of the Interim Constitution and also of the Bill of
Fundamental Rights of the Interim Constitution.

Istrabadi described the hope and excitement his countrymen
have because “politics are going on in Iraq for the
first time in 35 years.” He said that the National Assembly
election in January 2005 marked “the first time in our
history when we didn’t know who was going to win the
election before we voted.”

He did say that the constitution is not as liberal as he
would have hoped, but stressed that the process was
important: “Giving life to constitutionally defined political
institutions is far more important to the course of Iraq’s
immediate future.” He compared writing the constitution
to horse trading, explaining that when the drafting process
broke down, draftees added a provision to gain the participation
of Sunni Arabs. The Parliament, elected in
December with wide Sunni participation, can propose a
new package of amendments, which may represent Sunni
interests more favorably.

He noted that critics, notably The New York Times, have
said the constitution didn’t offer adequate protection for
women and minorities. He argued, “There is a clearly expressed
equality before the law in that document.” Later he
applauded the Iraqi political progress that took the country
from a brutal tyranny to an elected government and noted
that 31 percent of the National Assembly members are
women, whereas in the United States only 14 percent of
the members of the House and Senate are women.

Other especially contentious issues that surfaced during
the drafting process included federalism and how to determine
control of natural resources, applicability of federal
laws to different regions, international treaties, representation
in foreign capitals—for example, can a Kurdish leader
have a regional office in California?—and how to work
religion into the legal life of the country. The constitution
now states, he said, that Islam is a source of legislation, but
not the only source.

Despite Iraq’s varied ethnic concerns and complicated
political ambitions, he thinks federalism will work best and
said it is the “only key to the reunification of the country.”
He compared the constitution’s federalist arrangement to
systems such as those in the United Kingdom and Spain,
where Scotland and the Basque regions, respectively, are
under self-rule.

He also provided a snapshot of Iraq before the United
States invaded in March 2003. “There was one Iraq legally,
yes, but de facto there were two or three.” In Kurdistan
there were two states, he said, and “they shared a common
parliament but had their own prime ministers, were under
international protection, had a healthy economic and cultural
life, and used Iraq’s old currency for their currency.
Baghdad, under the control of Saddam Hussein, had its
own court of causation, used a different currency, and
suffered a shrinking economy, primarily because of international
sanctions. The country was in fact dissolved.”

He ended by saying he looks forward to the day when
the United States can leave Iraq a secure and safe place
and the two countries can enjoy friendly relations and
healthy trade. “Rome was not built in a day. It will take at
least a generation to rebuild Iraq.”

JUDGE STEIN Judge Sidney Stein of the US
District Court for the Southern District of NY
addressed LL.M. students on the future of the
Federal Sentencing Guidelines. His visit was sponsored
by the Office of Graduate and International
Programs and the Graduate Law Society.

MEXICAN VISITORS Early in the semester, students and recent graduates of some of
Mexico City’s law schools, including Escuela Libre de Derecho, Universidad Iberoamericana,
Universidad Panamericana, and the UNAM Instituto de Investigaciones Juridicas visited
Cardozo to learn more about the master of laws programs. They met with Dean Rudenstine and
members of the faculty; attended classes, including a special presentation on trademark law
by Prof. Barton Beebe; met with Judge Miriam Cedarbaum at the US District Court for the
Southern District of New York; and toured Greenwich Village. Dean Rudenstine visited the
Mexican law schools last year with Toni Fine, director of the LL.M. program (third from right).

ON DOUBLE-SUPER-SECRET BACKGROUND Viveca Novak, the Washington
correspondent for Time who was called to testify in the Valerie Plame leak case, discusses
dealing with and protecting confidential sources at On Double-Super-Secret Background:
Managing Confidential Sources. Other panelists were (from left) Mark Bowden, national
correspondent, the Atlantic Monthly; Mark Feldstein, director of the journalism program
and associate professor of media and public affairs, George Washington University; and
Victor Kovner, partner, Davis Wright Tremaine LLP.

TRUST LAW IN THE 21ST CENTURY Prof.
Gregory Alexander of Cornell University Law School
joined Prof. Stewart Sterk on a fiduciary duties panel
at Trust Law in the 21st Century. The conference
focused on significant developments in the growth of
the perpetual trust and the move by many states and
offshore jurisdictions to increase the availability of
trusts for asset protection purposes. The event was
cosponsored with The American College of Trust and
Estate Counsel Foundation of Los Angeles, CA.

PAULSEN MOOT COURT COMPETITION
Paulsen Moot Court Competition winner Baruch
Gottesman ’07 and runner up Arkadia Delay ’08 are
joined by competition judges (from left) Roy Barnes,
former governor of Georgia; Mrs. Jenny Paulsen; and
Judges Dora Irizarry, US District Court, Eastern
District of NY; and Robert Katzmann, US Court of
Appeals for the Second Circuit.

In the fall, 19 law students began working with the
newly founded Cardozo Youth Advocates. Started by
Sarah Hudson-Plush ’07, Lauren Kaeseberg ’07, and Aron
Zimmerman ’06, this program is intended to get young
people thinking and talking about the law. The Cardozo
students have been working with The Door, a youth
services center, where they share responsibility for teaching
a weekly class called Law Talk, in which they cover
a variety of topics and facilitate conversations about
such legal issues as the death penalty, same-sex
marriage, the First Amendment, and children’s rights.
Hudson-Plush said similar sessions will begin in the
spring at Washington Irving High School, located near
Cardozo, where about 500 students are part of the high
school’s law and public service program. Plans are also
under way for a Law Day, an evening program when high
school students will visit Cardozo for mock classes and
opportunities to meet informally with law students.

Innocence Project Gains
Another Release

On September 29 at the
Innocence Project office,
Barry Scheck held a press
conference to discuss the
exoneration that day of his
client Barry Gibbs, 57, who
was wrongfully convicted
in 1988 of murdering a
Brooklyn woman.

In an emotional statement,
Mr. Gibbs, a Navy
veteran and former postal
worker who is free after
serving 19 years in prison,
said he was both humbled
and overwhelmed, and
cautioned that what happened
to him could happen
to anyone. He added that
the judge’s words overturning
his conviction were the
best he ever heard in his
whole life. The first thing
he did after his release was
take a two-hour bath.

His murder conviction
was vacated after new
evidence revealed that ex-
NYPD officer Louis
Eppolito, who is under
indictment for mob-related
activities, pressured an
eyewitness to falsely
identify Gibbs.

Innocence Project attorney
Vanessa Potkin (far
left) and Scheck acknowledged
the efforts of the
Brooklyn District Attorney’s
Office, the US Attorney’s
Office for the Eastern
District, and the DEA,
whose agents worked with
the Innocence Project to
reopen and reinvestigate
the case. Scheck said this
was originally a case of law
enforcement gone bad, but
now it’s a case of law
enforcement corrected. As
of press time, 175 prisoners
have been exonerated with
the help of the Innocence
Project. Mr. Gibbs was the
166th to be released.